Showing posts with label Paternity. Show all posts
Showing posts with label Paternity. Show all posts
Wednesday, September 7, 2011
Fighting for Custody in a Paternity Case
Children are born out of wedlock under a variety of circumstances. Sometimes there's a long-term relationship, sometimes a one-night stand. Sometimes the father is involved all the way and sometimes the father isn't informed until months or years after the child's birth. Some fathers choose not to be involved and try to avoid responsibility. Other fathers try to be as involved as the mother will permit. Some unmarried parents work very well together, some don't get along at all, and others can set up a plan and follow it, even when the parents don't really like each other.
Obviously, there are many different circumstances when a child is brought into the world with parents who aren't married. One factor that almost always appears is a court order to officially establish who the father is and then set child support and terms of access to the child. It will also allocate the rights of parents between the two parents. All together, that amounts to a custody determination.
In most cases where a child is born out of wedlock, the child ends up with the mom who has most of the significant parental rights and has the child the majority of the time. The father usually is ordered to pay child support and has visitation rights. In the future, child support and visitation often become repetitive sources of conflict between the parents.
In a few cases, the father of the baby decides to try to win custody of the child. For the fathers who are considering such actions, here are some issues to consider.
1. Do you really want the responsibility that goes with having primary custody? Or do you just want a lot of time with the child? Do you want decision-making powers, or want to share them, or does that matter to you? What are your underlying goals or needs? These are questions you should answer and discuss with your attorney.
2. Are you prepared to take primary care of a child? Do you have the knowledge and experience to be able to deal with your child's needs in an age-appropriate manner? You can certainly learn, but there are a lot of things you will need to do that you may not intuitively know.
3. How do you compare to the other parent on parenting issues? Everyone has strengths and weaknesses. A judge will be evaluating both parents to determine who has the best skills, experience and attitude for taking care of a child. If possible, you should be able to demonstrate your competence as a parent.
4. If you haven't been the primary caregiver, why should the court switch to you? That's really a key question. Even if this may be the first official custody determination for your child, there is a natural tendency to view it as an issue of whether custody should be modified or changed, if one parent has had significant time where she has been the primary or only parent involved. You need to have some powerful reasons why the court should upset the living arrangements. It's not always best to leave a child where he/she has been, but it is common for a judge to start with a preference to not change a stable arrangement.
5. Ultimately, what is in the child's best interest? That is, absolutely, the bottom-line issue. You need to be able to articulate what the child's best interest is and why you are in the best position to help meet your child's actual needs.
If you are considering fighting for custody for a child born out of wedlock, you should think carefully before you start the fight. Try to figure out what your real underlying interests are. Don't get stuck just thinking about possible solutions. What are your strengths and weaknesses? Are you prepared for a tough, expensive and emotional fight? Think and analyze before you act. Get counsel from wise family members and friends, but lean heavily on the advice of an experienced family law attorney who has seen and been involved in such cases in the past.
Remember to look before you leap!
Wednesday, May 21, 2008
Who's Your Daddy!
In a recent post, Dan Nunley, of the Oklahoma Family Law Blog, reported on a case in an Kentucky court where a man was not permitted to be named father of a child even though DNA testing showed that he undeniably was the father. The problem was that he had not complied with a statute that did not permit an untimely challenge to a paternity presumption in favor of the man who was married to the mother at the time of the child's birth. Apparently, in Oklahoma there is a somewhat similar statute. When the mother is married in Oklahoma when the child is born, if the prospective father is not the one married to the mother, he only has two years to challenge the presumption that the husband is the father.
In most cases, that is not a problem because the husband is the father. In a few cases, however, there can be a problem if the husband is not the father, but the real father and/or the husband are not aware of the real facts. Apparently, the law would prevent the real father from belatedly establishing his paternity and building a relationship. It would also prevent the husband from possibly avoiding paying child support for a child that was not his. As a result, sometimes men are forced to pay child support for children who are not their children.
In Texas, while there is a presumption that the husband of a mother is the father of a child born during their marriage, in most cases it can be attacked as long as there has not been a court order formally stating that the husband is the father. DNA testing is an acceptable method of proving or disproving such paternity.
Not being able to prove or disprove paternity, as in the Kentucky or Oklahoma situation can lead to some problems. It could prevent a child from learning about potential hereditary health problems. It could also cut a child off from relationships with his or her rightful family and from potential inheritances.
Texas law does have another problem that can arise where there is an order finding that someone is the father of the child. Sometimes husbands just assume that they are the father when they really aren't. If they agree initially at the time of divorce that they are the father and later find out that they aren't, it is virtually impossible to undo a finding that they are the father. That's true even if DNA tests show that the ex-husband is truly not the father. The current law attempts to provide stability for children by not allowing re-litigation of paternity after it has been determined officially. That apparently outweighs, in the eye of the law, the harm done to a man required to pay child support for someone who is not his child.
The bottom line is that parents need to be careful and truthful about paternity. That is also true of men who have even brief relationships with women. There are probably many more sad stories of injustice relating to paternity.
In most cases, that is not a problem because the husband is the father. In a few cases, however, there can be a problem if the husband is not the father, but the real father and/or the husband are not aware of the real facts. Apparently, the law would prevent the real father from belatedly establishing his paternity and building a relationship. It would also prevent the husband from possibly avoiding paying child support for a child that was not his. As a result, sometimes men are forced to pay child support for children who are not their children.
In Texas, while there is a presumption that the husband of a mother is the father of a child born during their marriage, in most cases it can be attacked as long as there has not been a court order formally stating that the husband is the father. DNA testing is an acceptable method of proving or disproving such paternity.
Not being able to prove or disprove paternity, as in the Kentucky or Oklahoma situation can lead to some problems. It could prevent a child from learning about potential hereditary health problems. It could also cut a child off from relationships with his or her rightful family and from potential inheritances.
Texas law does have another problem that can arise where there is an order finding that someone is the father of the child. Sometimes husbands just assume that they are the father when they really aren't. If they agree initially at the time of divorce that they are the father and later find out that they aren't, it is virtually impossible to undo a finding that they are the father. That's true even if DNA tests show that the ex-husband is truly not the father. The current law attempts to provide stability for children by not allowing re-litigation of paternity after it has been determined officially. That apparently outweighs, in the eye of the law, the harm done to a man required to pay child support for someone who is not his child.
The bottom line is that parents need to be careful and truthful about paternity. That is also true of men who have even brief relationships with women. There are probably many more sad stories of injustice relating to paternity.
Wednesday, June 27, 2007
What to do If the Attorney General Knocks on Your Door (Figuratively Speaking)
A "knock on the door" from the Texas Attorney General can take several forms: a letter, a phone call to you, a call to your employer or service of papers on you, among other ways. The knock is to notify you that something is about to happen in court or by a court order. If you are a parent, or alleged to be a parent, the knock is probably to notify you either that you are a parent and have an obligation to start supporting a child or children or they want to examine your financial situation and maybe raise your existing child support or they want you to start paying the support that was previously ordered.
What should you do if you get notice in some form from the A.G.’s office?
Contact a family lawyer, and right away. Don’t delay, especially if you find out about a court date. You need to understand the law and what your options are. The A.G. is not involved to help or represent you. They can’t give you legal advice. They are not a completely neutral party in the process. You need your own counsel. You may be able to work out a better deal by resolving the matter before it goes to court, so you should hire an attorney as soon as possible. It may also take a while to gather information and prepare for court.
Why the A.G. Gets Involved
There are numerous ways for the Attorney General’s office to get involved in your business. A parent could request assistance from the A.G. to collect child support. The State of Texas may have initiated the action if some state assistance has been paid to a parent because of a child. Federal and state laws have forced the A.G. to become very active in collecting child support. They help parents who need to get an initial court order designating someone as the father and ordering the payment of child support. They may also help parents collect past-due child support owed sometimes by "deadbeat dads" (or moms), but also owed sometimes by dads or moms who lost their jobs or became ill or for some other reason could not work or had their pay cut. In addition, the A.G. may periodically review cases to see if support is being paid and to determine whether support should be raised or lowered. (They rarely act to get child support reduced.)
What are some of the things that can happen if the Attorney General comes knocking?
1. Obligations can be created. A court can order retroactive child support all the way back to the birth of the child. The obligation usually will extend until the child is 18 or finishes high school (whichever is later) and can extend beyond that in special circumstances. If there is a court order, you will likely be ordered to pay court costs and attorneys’ fees. There will probably also be an order for medical child support: providing or paying the cost for the child’s health insurance and paying a portion or all of the unreimbursed medical expenses.
2. There could be an increase in child support.
3. An enforcement action can have significant penalties. If the court finds a child support arrearage (meaning there is past-due, unpaid child support), a judgment with interest may be entered against the obligor (a nice legalese term for the person previously ordered to pay the money) and there would be an order for payments to be made until the total was paid off. There can also be an order for confinement in jail for up to six months for each proven violation of the court order, although some judges will allow a person to be put on probation or community supervision. Probation permits a person to stay out of jail if they report at least once a month to a probation officer and comply with a long list of other requirements. State law also provides for possible suspension of various licenses issued by the state, including driver’s license and professional licenses, among others.
Cautions
Several things with serious consequences can happen. You can do a lot of damage to yourself by proceeding without representation.
1. Don’t sign anything regarding children or child support without consulting an attorney. You may not understand things very well. The A.G.’s office does know what they’re doing. They are not necessarily trying to take advantage of you, but their objectives and your interests may be different and you may make bad decisions if you proceed without the assistance of an attorney.
2. You might think you can start out at a hearing or court date and then stop it if you don’t like how it’s going. That’s not likely to happen.
3. You may think you can agree to something outside of court and it won’t be binding on you, but it may be binding if you sign it.
4. If you think you can stop everything by just not showing up or by refusing to accept a set of papers, you are wrong and you may end up with a judgment or child support obligation owed by you.
Best advice: See a lawyer immediately!
What should you do if you get notice in some form from the A.G.’s office?
Contact a family lawyer, and right away. Don’t delay, especially if you find out about a court date. You need to understand the law and what your options are. The A.G. is not involved to help or represent you. They can’t give you legal advice. They are not a completely neutral party in the process. You need your own counsel. You may be able to work out a better deal by resolving the matter before it goes to court, so you should hire an attorney as soon as possible. It may also take a while to gather information and prepare for court.
Why the A.G. Gets Involved
There are numerous ways for the Attorney General’s office to get involved in your business. A parent could request assistance from the A.G. to collect child support. The State of Texas may have initiated the action if some state assistance has been paid to a parent because of a child. Federal and state laws have forced the A.G. to become very active in collecting child support. They help parents who need to get an initial court order designating someone as the father and ordering the payment of child support. They may also help parents collect past-due child support owed sometimes by "deadbeat dads" (or moms), but also owed sometimes by dads or moms who lost their jobs or became ill or for some other reason could not work or had their pay cut. In addition, the A.G. may periodically review cases to see if support is being paid and to determine whether support should be raised or lowered. (They rarely act to get child support reduced.)
What are some of the things that can happen if the Attorney General comes knocking?
1. Obligations can be created. A court can order retroactive child support all the way back to the birth of the child. The obligation usually will extend until the child is 18 or finishes high school (whichever is later) and can extend beyond that in special circumstances. If there is a court order, you will likely be ordered to pay court costs and attorneys’ fees. There will probably also be an order for medical child support: providing or paying the cost for the child’s health insurance and paying a portion or all of the unreimbursed medical expenses.
2. There could be an increase in child support.
3. An enforcement action can have significant penalties. If the court finds a child support arrearage (meaning there is past-due, unpaid child support), a judgment with interest may be entered against the obligor (a nice legalese term for the person previously ordered to pay the money) and there would be an order for payments to be made until the total was paid off. There can also be an order for confinement in jail for up to six months for each proven violation of the court order, although some judges will allow a person to be put on probation or community supervision. Probation permits a person to stay out of jail if they report at least once a month to a probation officer and comply with a long list of other requirements. State law also provides for possible suspension of various licenses issued by the state, including driver’s license and professional licenses, among others.
Cautions
Several things with serious consequences can happen. You can do a lot of damage to yourself by proceeding without representation.
1. Don’t sign anything regarding children or child support without consulting an attorney. You may not understand things very well. The A.G.’s office does know what they’re doing. They are not necessarily trying to take advantage of you, but their objectives and your interests may be different and you may make bad decisions if you proceed without the assistance of an attorney.
2. You might think you can start out at a hearing or court date and then stop it if you don’t like how it’s going. That’s not likely to happen.
3. You may think you can agree to something outside of court and it won’t be binding on you, but it may be binding if you sign it.
4. If you think you can stop everything by just not showing up or by refusing to accept a set of papers, you are wrong and you may end up with a judgment or child support obligation owed by you.
Best advice: See a lawyer immediately!
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